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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Rules and Regulations nor would they provide additional benefits for the deployment of broadband infrastructure on Federal-aid highways. The commenter added that the requirements appear to create or duplicate work as the State already has established efficient processes and strong relationships with utility partners including broadband companies in their State.
This rule satisfies the mandate provided by Congress in Section 607 of the MOBILE NOW Act. Further, the rule allows flexibility for States to use their existing processes to meet the requirements of this rule.
One commenter urged FHWA to reduce the assumed cost in the economic analysis because some States may already be in compliance. The commenter also suggested that cost savings, or economic benefits, of a Dig Once Policy should also be included in the economic analysis.
FHWA recognizes that some States already may be implementing some of the requirements of this rule. For example, in the Supporting Statement on the economic analysis for the proposed rule, FHWA noted that some States may add the broadband utility coordinator responsibility onto the role of an existing employee. However, FHWA lacks data and information on specific States practices that would facilitate a more refined analysis.
Although FHWA requested data and information to inform the economic analysis in the NPRM, FHWA did not receive relevant data or information.
As discussed in response to a comment on proposed 645.307a1, FHWA expects that the duties of a broadband utility coordinator are likely to vary across all States, but would be less than a full-time commitment. In the economic analysis for the final rule, FHWA assumes that roughly 50 percent of an employees time might be taken up by performing the duties related to this provision, which represents the expected average burden of the broadband utility coordinator across all States.
Regarding the benefits of a Dig Once Policy, FHWA explained in the economic analysis for the proposed rule that the rule is expected to result in benefits from increased coordination between government agencies and broadband entities at different levels.
FHWA expects this increased coordination generally would increase the efficiency of broadband projects and potentially result in fewer disruptions for area residents. FHWA, however, lacks the data and information needed to quantify these potential benefits.
While FHWA in the NPRM requested
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data and information to inform the economic analysis, FHWA did not receive relevant data or information.
Accordingly, FHWA acknowledges the potential benefits of a Dig Once approach on a qualitative basis.
One State DOT noted that the NPRM
indicates the proposed rulemaking action is categorically excluded under 23 CFR 771.117c1, and asked how FHWA made that determination.
This rule implements the requirements of section 607 of the MOBILE NOW Act 47 U.S.C. 1504 that are applicable to States that receive Title 23 Federal-aid highway funds. This rule does not involve and will not lead directly to construction. This rule establishes coordination, registration, and notification requirements that State DOTs will implement.
Comments on 645.307a1
Multiple commenters expressed concern that the requirement to identify a broadband utility coordinator is an unfunded mandate.
For the reasons explained in the Rulemaking Analyses and Notices section of this preamble, this rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 Pub. L. 1044, 109
Stat. 48.
Multiple State DOTs disagreed with FHWAs estimates of the level of effort that is necessary to meet the rules requirements. These State DOTs estimate a significantly higher resource impact from this rule than that estimated by FHWA. In particular, some State DOTs commented that there will be increased administrative, coordination, and inventory needs as a result of this rule and that the broadband utility coordinator may need to have specialized expertise due to the nature of the broadband industry.
FHWA expects that it is likely the duties of a broadband utility coordinator will vary across all States, but would be less than a full-time employee FTE
commitment. As discussed in the NPRM, FHWA assumed in the economic analysis for the proposed rule that 30
percent of an employees time would be utilized for these duties. After considering the public comments received in response to the NPRM and revisiting the time assumptions used in the economic analysis for the proposed rule, FHWA assumes that roughly 50
percent of an FTEs time might be utilized for the duties related to the broadband utility coordinator provision.
This represents the estimated average burden of the broadband utility coordinator position across all States.
FHWA has revised the economic
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analysis for the final rule to reflect the 50 percent assumption.
Two State DOTs sought clarification on efforts within the State and suggested that ROW be specifically confined to transportation ROW.
The language in the final rule tracks the statutory language in Section 607 of the MOBILE NOW Act. The efforts in each State to implement the final rule may vary based on State law, policies, and practices for broadband infrastructure deployment.
One State DOT stated that more specificity regarding the duties of broadband utility coordinator may be helpful.
FHWA has not defined the duties of the broadband utility coordinator in this regulation in order to allow for any flexibility States may need to implement this regulation.
One State DOT asked to what extent are the other appropriate State agencies to have approval pertaining to the selection of the coordinator, who is to identify the other State agencies for consultation, and what level of documentation FHWA will require to verify that consultation has occurred.
Aside from providing for a State DOTs consultation with appropriate State agencies, the final rule does not include requirements relating to such agencies. Each State has flexibility to identify the other State agencies and to establish any other requirements or procedures, such as the level of documentation of consultation, to implement this regulation.
One State DOT asked whether, if the broadband utility coordinator resides in another agency besides the State DOT, Federal funds could be used to reimburse time and expenses of that coordinator and what documentation would be required.
This rule does not change any eligibilities for Title 23 funding consistent with governmentwide administrative requirements and cost principles in 2 CFR part 200.
One State DOT asked if FHWA will provide a list of minimum requirements that a non-DOT coordinator should possess concerning knowledge and understanding of the Federal guidelines concerning utilization of the ROW.
The final rule does not include such requirements and FHWA does not anticipate establishing such requirements. Rather, each State retains flexibility to determine the minimum requirements needed to implement this regulation.
Comments on 645.307a2
FHWA also received comments on 645.307a2, which requires a State
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